1998
Introduced by
epresentatives Gray, Groscost, Cooley, Brimhall, Senator Freestone: Representatives Aguirre, Armstead, Daniels, Eberhart, Fagin, Flake, Foster,
Johnson, Marsh, Nichols, Weiers, Wong, Senators Bowers, Burns B, Kaites, Patterson, Petersen, Richardson G, Spitzer
AN ACT
amending sections 8-321, 8-343, 9-499.07, 11-459, 12-251, 12-820.02, 13-604.03, 13-607, 13-702, 13-809 and 13-902, Arizona Revised Statutes; amending section 22-125, Arizona Revised Statutes, as amended by Laws 1997, chapter 1, section 44; repealing section 22-125, Arizona Revised Statutes, as amended by Laws 1997, chapter 222, section 64; amending sections 25-403, 28-693 and 28-1301, Arizona Revised Statutes; changing the designation of title 28, chapter 4, article 1, Arizona Revised Statutes, to "general provisions"; amending title 28, chapter 4, article 1, Arizona Revised Statutes, by adding sections 28-1303 and 28-1304; amending sections 28-1321, 28-1322 and 28-1381, Arizona Revised Statutes; repealing section 28-1382, Arizona Revised Statutes; amending title 28, chapter 4, article 3, Arizona Revised Statutes, by adding a new section 28-1382; amending sections 28-1383, 28-1385 and 28-1386, Arizona Revised Statutes; amending title 28, chapter 4, article 3, Arizona Revised Statutes, by adding sections 28-1387 and 28-1388; amending sections 28-1441, 28-1443 and 28-1444, Arizona Revised Statutes; amending title 28, chapter 4, Arizona Revised Statutes, by adding article 5; amending sections 28-1601, 28-3315, 28-3319, 28-3320, 28-3473, 28-8283 and 31-255, Arizona Revised Statutes; amending section 36-2005, Arizona Revised Statutes, as amended by Laws 1997, chapter 1, section 422 and chapter 220, section 85; amending section 36-2006, Arizona Revised Statutes, as amended by Laws 1997, chapter 1, section 423 and chapter 220, section 86; blending multiple enactments; relating to driving under the influence.
Be it enacted by the Legislature of the State of Arizona: 1
8-321.||Referrals; diversions; conditions; community based 1
alternative programs; definition 2
A.||Except as provided in subsection B of this section, before a 3
petition is filed or an admission or adjudication hearing is held, the county 4
attorney may divert the prosecution of a juvenile who is accused of 5
committing a delinquent act or a child who is accused of committing an 6
incorrigible act to a community based alternative program or to a diversion 7
program administered by the juvenile court. 8
B.||A juvenile who is a chronic felony offender as defined in section 9
13-501, who is a violent felony offender or who is alleged to have committed 10
a violation of section 28-1381, 28-1382 or 28-1383 is not eligible for 11
diversion. 12
C.||The county attorney has sole discretion to decide whether to divert 13
prosecution of a juvenile offender. The county attorney may designate the 14
offenses that shall be retained by the juvenile court for diversion or that 15
shall be referred directly to a community based alternative program. 16
D.||The county attorney or the juvenile court in cooperation with the 17
county attorney may establish community based alternative programs. 18
E.||Except for offenses that the county attorney designates as eligible 19
for diversion or referral to a community based alternative program, upon 20
receipt of a referral alleging the commission of an offense, the juvenile 21
probation officer shall submit the referral to the county attorney to 22
determine if a petition should be filed. 23
F.||If the county attorney diverts the prosecution of a juvenile to the 24
juvenile court, the juvenile probation officer shall conduct a personal 25
interview with the alleged juvenile offender. At least one of the juvenile’s 26
parents or guardians shall attend the interview. The probation officer may 27
waive the requirement for the attendance of the parent or guardian for good 28
cause. If the juvenile acknowledges responsibility for the delinquent or 29
incorrigible act, the juvenile probation officer shall require that the 30
juvenile comply with one or more of the following conditions: 31
1.||Participation in unpaid community service work. 32
2.||Participation in a counseling program approved by the court, which 33
is designed to strengthen family relationships and to prevent repetitive 34
juvenile delinquency. 35
3.||Participation in an education program approved by the court, which 36
has as its goal the prevention of further delinquent behavior. 37
4.||Participation in an education program approved by the court, which 38
is designed to deal with ancillary problems experienced by the juvenile, such 39
as alcohol or drug abuse. 40
5.||Participation in a nonresidential program of rehabilitation or 41
supervision offered by the court, or offered by a community youth serving 42
agency and approved by the court. 43
6.||Payment of restitution to the victim of the delinquent act. 1
7.||Payment of a monetary assessment. 2
G.||If the juvenile successfully complies with the conditions set forth 3
by the probation officer, the county attorney shall not file a petition in 4
juvenile court and the program’s resolution shall not be used against the 5
juvenile in any further proceeding and is not an adjudication of 6
incorrigibility or delinquency. The resolution of the program is not a 7
conviction of crime, does not impose any civil disabilities ordinarily 8
resulting from a conviction and does not disqualify the juvenile in any civil 9
service application or appointment. 10
H.||In order to participate in a community based alternative program 11
the juvenile who is referred to a program shall admit responsibility for the 12
essential elements of the accusation and shall cooperate with the program in 13
all of its proceedings. 14
I.||All of the following apply to each community based alternative 15
program that is established pursuant to this section: 16
1.||The juvenile’s participation is voluntary. 17
2.||The victim’s participation is voluntary. 18
3.||The community based alternative program shall ensure that the 19
victim, the juvenile’s parent or guardian and any other persons who are 20
directly affected by an offense have the right to participate. 21
4.||The participants shall agree to the consequences imposed on the 22
juvenile or the juvenile’s parent or guardian. 23
5.||The meetings and records shall be open to the public. 24
J.||After holding a meeting the participants in the community based 25
alternative program may agree on any legally reasonable consequences that the 26
participants determine are necessary to fully and fairly resolve the matter 27
except confinement. 28
K.||The participants shall determine consequences within thirty days 29
after referral to the community based alternative program, and the juvenile 30
shall complete the consequences within ninety days after the matter is 31
referred to the community based alternative program. The county attorney or 32
the juvenile probation officer may extend the time in which to complete the 33
consequences for good cause. 34
L.||The community based alternative program, the juvenile, the 35
juvenile’s parent or guardian and the victim may sign a written contract in 36
which the parties agree to the program’s resolution of the matter and in 37
which the juvenile’s parent or guardian agrees to ensure that the juvenile 38
complies with the contract. The contract may provide that the parent or 39
guardian shall post a bond payable to this state to secure the performance 40
of any consequence imposed on the juvenile pursuant to subsection J of this 41
section. 42
M.||If the juvenile successfully completes the consequences, the county 1
attorney shall not file a petition in juvenile court and the program’s 2
resolution shall not be used against the juvenile in any further proceeding 3
and is not an adjudication of incorrigibility or delinquency. The resolution 4
of the program is not a conviction of crime, does not impose any civil 5
disabilities ordinarily resulting from a conviction and does not disqualify 6
the juvenile in any civil service application or appointment. 7
N.||The county attorney or juvenile court shall assess the parent of 8
a juvenile who is diverted pursuant to subsection A of this section a fee of 9
forty dollars unless, after determining the inability of the parent to pay 10
the fee, the county attorney or juvenile court assesses a lesser amount. All 11
monies assessed pursuant to this subsection shall be used for the 12
administration and support of community based alternative programs or 13
juvenile court diversion programs. The clerk of the superior court shall pay 14
all monies collected from this assessment to the county treasurer for deposit 15
in the juvenile probation fund, to be utilized as provided in section 12-268, 16
and the county attorney shall pay all monies collected from this assessment 17
into the county attorney diversion fund established by section 11-537. 18
O.||The supreme court shall annually establish an average cost per 19
juvenile for providing diversion services in each county, based upon the 20
monies appropriated for diversion pursuant to section 8-322, excluding the 21
cost of juvenile intake services provided by the juvenile court, and the 22
number of juveniles diverted the previous year. Upon the county attorney’s 23
certification to the supreme court of the number of juveniles diverted to a 24
county attorney community based alternative program each quarter, the annual 25
average cost per juvenile for each juvenile diverted shall be reimbursed to 26
the county attorney diversion fund established by section 11-537 out of 27
monies appropriated to the supreme court for diversion programs. 28
P.||If the juvenile does not acknowledge responsibility for the 29
offense, or fails to comply with the consequences set by the community based 30
alternative program, the case shall be submitted to the county attorney for 31
review. 32
Q.||After reviewing a referral, if the county attorney declines 33
prosecution, the county attorney may return the case to the juvenile 34
probation department for further action as provided in subsection F of this 35
section. 36
R.||For the purposes of this section, "violent" means an offense 37
involving the discharge, use or threatening exhibition of a deadly weapon or 38
dangerous instrument or the intentional or knowing infliction of serious 39
physical injury on another person and includes an offense listed in section 40
13-501. 41
Sec.|2.||Section 8-343, Arizona Revised Statutes, is amended to read: 1
8-343.||Disposition of offenses involving driving or in actual 2
physical control of a motor vehicle while under the 3
influence of intoxicating liquor or drugs 4
A.||A juvenile who is adjudicated delinquent for a violation of section 5
28-1381 or 28-1382 shall be incarcerated for a period of twenty-four 6
consecutive hours. 7
B.||A juvenile who within a period of sixty months is adjudicated 8
delinquent for a violation of section 28-1381 or 28-1382 and who has 9
previously been adjudicated for a violation of section 28-1381, 28-1382 or 10
28-1383 or an act in another state, a court of the United States or a tribal 11
court that if committed in this state would be a violation of section 12
28-1381, 28-1382 or 28-1383 shall be incarcerated for a period of thirty 13
consecutive days that shall be served in a juvenile detention center or in 14
the department of juvenile corrections. 15
C.||A juvenile who is adjudicated delinquent for a violation of section 16
28-1383 shall be sentenced as provided in section 28-1383 except that any 17
incarceration shall be served in a juvenile detention center or in the 18
department of juvenile corrections. 19
D.||If a juvenile admits committing a violation of section 28-1381, 20
28-1382 or 28-1383 or if the court finds that the juvenile committed a 21
violation of section 28-1381, 28-1382 or 28-1383, the juvenile hearing 22
officer, judge or commissioner shall order the juvenile to pay at least one 23
hundred dollars but not more than five hundred dollars plus any applicable 24
surcharges and assessments to the public agency processing the violation or 25
the court may order the juvenile to perform at least eighty hours of 26
community service under the supervision of the court. 27
E.||The dates of the commission of the offense shall be the determining 28
factor in applying the sixty month provision of subsection B of this section, 29
irrespective of the sequence in which the offenses were committed. A second 30
violation for which a conviction occurs as provided in this section shall not 31
include a conviction for an offense arising out of the same series of acts. 32
F.||In addition to any other penalties prescribed by law, if a juvenile 33
admits committing a violation of section 28-1381, 28-1382 or 28-1383 or if 34
the court finds that the juvenile committed a violation of section 28-1381, 35
28-1382 or 28-1383, the juvenile hearing officer, judge or commissioner shall 36
order the juvenile to complete alcohol or other drug screening that is 37
provided by a facility approved by the department of health services or a 38
probation department. If a juvenile hearing officer, judge or commissioner 39
determines that the juvenile requires further alcohol or other drug education 40
or treatment, the juvenile may be required pursuant to court order to obtain 41
education or treatment under the court’s supervision from an approved 42
facility. The juvenile hearing officer, judge or commissioner may review an 43
education or treatment determination at the request of the state or the 1
defendant or on the juvenile hearing officer’s, judge’s or commissioner’s 2
initiative. The juvenile shall pay the costs of the screening, education or 3
treatment unless the court waives part or all of the costs. The court may 4
order the parent or guardian of the juvenile to pay part or all of the costs 5
of the screening, education or treatment. 6
Sec.|3.||Section 9-499.07, Arizona Revised Statutes, is amended to 7
read: 8
9-499.07.||Prisoner work, community service work and home 9
detention program; eligibility; monitoring; 10
procedures; home detention for persons sentenced 11
for driving under the influence of alcohol or drugs 12
A.||A city or town may establish a prisoner work, community service 13
work and home detention program for eligible sentenced prisoners which shall 14
be treated the same as confinement in jail. Such program shall be approved 15
by the presiding judge of the city or town municipal court prior to its 16
implementation. 17
B.||A prisoner is not eligible for a prisoner work, community service 18
work and home detention program if any of the following is applicable: 19
1.||The prisoner is found by the city or town to constitute a risk to 20
either himself or other members of the community. 21
2.||The prisoner has a past history of violent behavior. 22
3.||The sentencing judge states at the time of the sentence that the 23
prisoner may not be eligible for a prisoner work, community service work and 24
home detention program. 25
C.||For prisoners selected for the program the city or town may require 26
electronic monitoring in the prisoner’s home whenever the prisoner is not at 27
the prisoner’s regular place of employment or while the prisoner is assigned 28
to a community work task. If electronic monitoring is required, the prisoner 29
shall remain under the control of a home detention device which constantly 30
monitors the prisoner’s location in order to determine that the prisoner has 31
not left the prisoner’s premises. In all other cases, the city or town shall 32
implement a system of monitoring using telephone contact or other appropriate 33
methods to assure compliance with the home detention requirements. The city 34
or town may place appropriate restrictions on prisoners in the program 35
including testing prisoners for consumption of alcoholic beverages or drugs 36
or prohibiting association with individuals determined to be detrimental to 37
the prisoner’s successful participation in the program. 38
D.||If a prisoner is required to be placed on electronic monitoring 39
pursuant to subsection C of this section, the prisoner shall pay an 40
electronic monitoring fee in an amount ranging from zero to full cost and 41
thirty dollars per month while on electronic monitoring, unless, after 42
determining the inability of the prisoner to pay these fees, the city or town 43
assesses a lesser fee. The fees collected shall be used by the city or town 1
to offset operational costs of the program. 2
E.||Prisoners selected for the home detention program shall be employed 3
within the county in which the city or town is located. The city or town 4
shall review the place of employment to determine whether it is appropriate 5
for a home detention prisoner. If the prisoner is terminated from employment 6
or does not come to work, the employer shall notify the city or town. 7
Alternatively, or in addition, a community service work assignment may be 8
made by the city or town to a program recommended by the community service 9
work committee. If a prisoner is incapable of performing community service 10
or being employed, the city or town may exempt the prisoner from these 11
programs. 12
F.||The city or town may require that a prisoner who is employed during 13
the week also participate in community service work programs on weekends. 14
G.||The city or town may allow prisoners to be away from home detention 15
for special purposes including church attendance, medical appointments or 16
funerals. 17
H.||Community service work shall include public works projects operated 18
and supervised by the city or town or other public agencies of this state or 19
projects sponsored and supervised by public or private community oriented 20
organizations and agencies. 21
I.||A city or town implementing a program under this section shall 22
appoint a community service work committee. The committee shall recommend 23
to the city or town appropriate community service work projects for home 24
detention prisoners. Members are not eligible to receive compensation. 25
J.||At any time the city or town may terminate a prisoner’s 26
participation in the prisoner work, community service work and home detention 27
program and require that the prisoner complete the remaining term of the 28
prisoner’s sentence in jail confinement. 29
K.||Nothing in this section shall prohibit a city or town from entering 30
into a joint exercise of powers agreement pursuant to section 11-952 for a 31
prisoner work, community service work and home detention program. 32
L.||If authorized by the court, a person sentenced pursuant to section 33
28-1381 or 28-1382 shall not be placed under home detention in a prisoner 34
work, community service work and home detention program except as provided 35
in subsections M through R of this section. 36
M.||By a majority vote of the full membership of the governing body of 37
the municipality after a public hearing and a finding of necessity, a city 38
or town may establish a home detention program for persons sentenced to jail 39
confinement pursuant to section 28-1381 or 28-1382. A prisoner placed under 40
the program established pursuant to this subsection shall bear the cost of 41
all testing, monitoring and enrollment in alcohol or substance abuse programs 42
unless, after determining the inability of the prisoner to pay the cost, the 43
court assesses a lesser amount. The city or town shall use the collected 1
monies to offset operational costs of the program. 2
N.||If the city or town establishes a home detention program under 3
subsection M of this section, a prisoner must meet the following eligibility 4
requirements for the program: 5
1.||The provisions of subsection B of this section apply in determining 6
eligibility for the program. 7
2.||If the prisoner is sentenced under section 28-1382 28-1381, 8
subsection B| J, the prisoner first serves a minimum of twenty-four 9
consecutive hours in jail. 10
3.||Notwithstanding section 28-1382 28-1387, subsection O| C, if the 11
prisoner is sentenced under section 28-1382 28-1381, subsection D| L or 12
section 28-1382, subsection E, the prisoner first serves a minimum of fifteen 13
consecutive days in jail before being placed under home detention. 14
4.||The prisoner is required to comply with all of the following 15
provisions for the duration of the prisoner’s participation in the home 16
detention program: 17
(a)||All of the provisions of subsections C through H of this section. 18
(b)||Testing at least once a day for the use of alcoholic beverages or 19
drugs by a scientific method that is not limited to urinalysis or a breath 20
or intoxication test in the prisoner’s home or at the office of a person 21
designated by the court to conduct these tests. 22
(c)||Participation in an alcohol or drug program, or both. These 23
programs shall be accredited by the department of health services or a county 24
probation department. 25
(d)||Prohibition of association with any individual determined to be 26
detrimental to the prisoner’s successful participation in the program. 27
(e)||All other provisions of the sentence imposed. 28
5.||Any additional eligibility criteria that the city or town may 29
impose. 30
O.||If a city or town establishes a home detention program under 31
subsection M of this section, the court, on placing the prisoner in the 32
program, shall require electronic monitoring in the prisoner’s home and, if 33
consecutive hours of jail time are ordered, shall require the prisoner to 34
remain at home during the consecutive hours ordered. The detention device 35
shall constantly monitor the prisoner’s location to ensure that the prisoner 36
does not leave the premises. Nothing in this subsection shall be deemed to 37
waive the minimum jail confinement requirements under subsection M N, 38
paragraph 2 of this section. 39
P.||The court shall terminate a prisoner’s participation in the home 40
detention program and require the prisoner to complete the remaining term of 41
the jail sentence by jail confinement if: 42
1.||The prisoner fails to successfully complete a court ordered alcohol 1
or drug screening, counseling, education and treatment program pursuant to 2
subsection N, paragraph 4, subdivision (c) of this section, or section 3
28-1382 28-1381, subsection C k or E M or section 28-1382, subsection F. 4
2.||The court finds that the prisoner left the premises without 5
permission of the court or supervising authority during a time the prisoner 6
is ordered to be on the premises. 7
Q.||At any other time the court may terminate a prisoner’s 8
participation in the home detention program and require the prisoner to 9
complete the remaining term of the jail sentence by jail confinement. 10
R.||The governing body of the city or town may terminate the program 11
established under subsection M of this section by a majority vote of the full 12
membership of the governing body. 13
Sec.|4.||Section 11-459, Arizona Revised Statutes, is amended to read: 14
11-459.||Prisoner work, community service work and home 15
detention program; eligibility; monitoring; 16
procedures; home detention for persons sentenced for 17
driving under the influence of alcohol or drugs; 18
community service work committee; members; duties 19
A.||The sheriff may establish a prisoner work, community service work 20
and home detention program for eligible sentenced prisoners which shall be 21
treated the same as confinement in jail and shall fulfill the sheriff’s duty 22
to take charge of and keep the county jail and prisoners. 23
B.||A prisoner is not eligible for a prisoner work, community service 24
work and home detention program if any of the following is applicable: 25
1.||After independent review and determination of the jail’s 26
classification program, the prisoner is found by the sheriff to constitute 27
a risk to either himself or other members of the community. 28
2.||The prisoner has a past history of violent behavior. 29
3.||The prisoner has been convicted of a serious offense as defined by 30
section 13-604 or has been determined to be a dangerous and repetitive 31
offender. 32
4.||Jail time is being served as a result of a felony conviction. 33
5.||The sentencing judge states at the time of the sentence that the 34
prisoner may not be eligible for a prisoner work, community service work and 35
home detention program. 36
6.||The prisoner is sentenced to a county jail and is being held for 37
another jurisdiction. 38
C.||For prisoners selected for the program the sheriff may require 39
electronic monitoring in the prisoner’s home whenever the prisoner is not at 40
his regular place of employment or while the prisoner is assigned to a 41
community work task. If electronic monitoring is required, the prisoner 42
shall remain under the control of a home detention device which constantly 43
monitors the prisoner’s location in order to determine that the prisoner has 1
not left his premises. In all other cases, the sheriff shall implement a 2
system of monitoring using visitation, telephone contact or other appropriate 3
methods to assure compliance with the home detention requirements. The 4
sheriff may place appropriate restrictions on prisoners in the program 5
including testing prisoners for consumption of alcoholic beverages or drugs 6
or prohibiting association with individuals determined to be detrimental to 7
the prisoner’s successful participation in the program. 8
D.||If a prisoner is required to be placed on electronic monitoring 9
pursuant to subsection C of this section, the prisoner shall pay an 10
electronic monitoring fee in an amount ranging from zero to full cost and 11
thirty dollars per month while on electronic monitoring, unless, after 12
determining the inability of the prisoner to pay these fees, the sheriff 13
assesses a lesser fee. The fees collected shall be used by the sheriff to 14
offset operational costs of the program. 15
E.||Prisoners selected for the home detention program shall be employed 16
in the county in which they are incarcerated. The sheriff shall review the 17
place of employment to determine whether it is appropriate for a home 18
detention prisoner. If the prisoner is terminated from employment or does not 19
come to work, the employer shall notify the sheriff’s office. Alternatively, 20
or in addition, a community service work assignment may be made by the 21
sheriff to a program recommended to the sheriff by the community service work 22
committee. If a prisoner is incapable of performing community service or 23
being employed, the sheriff may exempt the prisoner from these programs. 24
F.||The sheriff may require that a prisoner who is employed during the 25
week also participate in community service work programs on weekends. 26
G.||The sheriff may allow prisoners to be away from home detention for 27
special purposes including church attendance, medical appointments or 28
funerals. The standard for review and determination of such leave is the 29
same as that implemented to decide transportation requests for similar 30
purposes made by prisoners confined in the county jail. 31
H.||Community service work shall include public works projects operated 32
and supervised by public agencies of this state or counties, cities or towns 33
on recommendation of the community service work committee and approval of the 34
sheriff. The community service work committee may also recommend and the 35
sheriff may approve other forms of community service work sponsored and 36
supervised by public or private community oriented organizations and 37
agencies. 38
I.||The community service work committee is established in each county 39
and is composed of two designees of the sheriff, a representative of the 40
county attorney’s office selected by the county attorney, a representative 41
of a local police agency selected by the police chief of the largest city in 42
the county and three persons selected by the county board of supervisors from 43
the private sector. A sheriff’s designee shall serve as committee chairman 44
and schedule all meetings. The committee shall meet as often as necessary, 1
but no less than once every three months, for the purpose of considering and 2
recommending appropriate community service work projects for home detention 3
prisoners. The committee shall make its recommendations to the sheriff. 4
Members are not eligible to receive compensation. 5
J.||At any time the sheriff may terminate a prisoner’s participation 6
in the prisoner work, community service work and home detention program and 7
require that the prisoner complete the remaining term of the prisoner’s 8
sentence in jail confinement. 9
K.||If authorized by the court, a person sentenced pursuant to section 10
28-1381 or 28-1382 shall not be placed under home detention in a prisoner 11
work, community service work and home detention program except as provided 12
in subsections L through Q of this section. 13
L.||By a majority vote of the full membership of the board of 14
supervisors after a public hearing and a finding of necessity a county may 15
authorize the sheriff to establish a home detention program for persons 16
sentenced to jail confinement pursuant to section 28-1381 or 28-1382. If the 17
board authorized the establishment of a home detention program, a county 18
sheriff may establish the program. A prisoner placed under the program 19
established pursuant to this subsection shall bear the cost of all testing, 20
monitoring and enrollment in alcohol or substance abuse programs unless, 21
after determining the inability of the prisoner to pay the cost, the court 22
assesses a lesser amount. The county shall use the collected monies to 23
offset operational costs of the program. 24
M.||If a county sheriff establishes a home detention program under 25
subsection L of this section, a prisoner must meet the following eligibility 26
requirements for the program: 27
1.||The provisions of subsection B of this section apply in determining 28
eligibility for the program. 29
2.||If the prisoner is sentenced under section 28-1382 28-1381, 30
subsection B| J, the prisoner first serves a minimum of twenty-four 31
consecutive hours in jail. 32
3.||Notwithstanding section 28-1382 28-1387, subsection O| C, if the 33
prisoner is sentenced under section 28-1382 28-1381, subsection D| L or 34
section 28-1382, subsection E, the prisoner first serves a minimum of fifteen 35
consecutive days in jail before being placed under home detention. 36
4.||The prisoner is required to comply with all of the following 37
requirements for the duration of the prisoner’s participation in the home 38
detention program: 39
(a)||All of the provisions of subsections C through H of this section. 40
(b)||Testing at least once a day for the use of alcoholic beverages or 41
drugs by a scientific method that is not limited to urinalysis or a breath 42
or intoxication test in the prisoner’s home or at the office of a person 1
designated by the court to conduct these tests. 2
(c)||Participation in an alcohol or drug program, or both. These 3
programs shall be accredited by the department of health services or a county 4
probation department. 5
(d)||Prohibition of association with any individual determined to be 6
detrimental to the prisoner’s successful participation in the program. 7
(e)||All other provisions of the sentence imposed. 8
5.||Any additional eligibility criteria that the county may impose. 9
N.||If a county sheriff establishes a home detention program under 10
subsection L of this section, the court, on placing the prisoner in the 11
program, shall require electronic monitoring in the prisoner’s home and, if 12
consecutive hours of jail time are ordered, shall require the prisoner to 13
remain at home during the consecutive hours ordered. The detention device 14
shall constantly monitor the prisoner’s location to ensure that the prisoner 15
does not leave the premises. Nothing in this subsection shall be deemed to 16
waive the minimum jail confinement requirements under subsection M, paragraph 17
2 of this section. 18
O.||The court shall terminate a prisoner’s participation in the home 19
detention program and shall require the prisoner to complete the remaining 20
term of the jail sentence by jail confinement if either: 21
1.||The prisoner fails to successfully complete a court ordered alcohol 22
or drug screening, counseling, education and treatment program pursuant to 23
subsection M, paragraph 4, subdivision (c) of this section, or section 24
28-1382 28-1381, subsection C| K or E| M or section 28-1382, subsection F. 25
2.||The prisoner leaves the premises during a time that the prisoner 26
is ordered to be on the premises without permission of the court or 27
supervising authority. 28
P.||At any other time the court may terminate a prisoner’s 29
participation in the home detention program and require the prisoner to 30
complete the remaining term of the jail sentence by jail confinement. 31
Q.||The sheriff may terminate the program at any time. 32
R.||A person sentenced pursuant to section 28-1383 shall not be placed 33
under home detention in a prisoner work, community service work and home 34
detention program. 35
Sec.|5.||Section 12-251, Arizona Revised Statutes, is amended to read: 36
12-251.||Adult probation officers and support staff; 37
appointment; qualifications 38
A.||The presiding judge of the superior court in each county shall 39
appoint a chief adult probation officer who shall serve at the pleasure of 40
the presiding judge. Such chief adult probation officer, with the approval 41
of the presiding judge of the superior court, shall appoint such deputy adult 42
probation officers and support staff as are necessary to provide presentence 43
investigations and supervision services to the court. Presentence 1
investigations and probation services may be provided to the justice courts 2
in each county for persons who are convicted of violating section 28-1381 or 3
28-1382 or title 13, chapter 14, 35.1 or 36 and who are placed on supervised 4
probation by the court. Presentence investigations and supervised probation 5
services may be provided by a county probation office to a municipal court 6
through an intergovernmental agreement entered into by the respective county 7
and municipality. On approval of the presiding judge and in accordance with 8
policies and procedures developed by the supreme court, the presiding judge 9
of the superior court may direct that presentence investigations and 10
supervised probation services be provided for other persons if a risk of 11
violence exists or if it would be in the best interest of justice. Those 12
deputy adult probation officers engaged in case supervision shall supervise 13
no more than an average of sixty adults who reside in the county on probation 14
to the court. Such deputy adult probation officers shall hold office under 15
rules and procedures established by the supreme court. 16
B.||Each adult probation officer appointed pursuant to subsection A of 17
this section shall give bond in the principal amount to be fixed by the court 18
and approved by the judge making the appointment, conditioned upon the 19
faithful performance by such officer of the officer’s official duties and the 20
payment of all monies coming into the officer’s possession as such officer 21
to the person, officer or body entitled to receive the monies. Any adult 22
probation officer covered by a blanket faithful performance bond payable to 23
the county or covered by state risk management shall be deemed to be in 24
compliance with this section. 25
C.||Probation department personnel shall qualify under minimum 26
standards of experience and education established by the supreme court. Such 27
standards may differ for counties of less than three hundred thousand persons 28
from counties with three hundred thousand persons or more. Notwithstanding 29
section 12-265, any additional salary costs that might be required as a 30
result of the adoption of minimum salary standards by the supreme court may 31
be paid by funds made available to the probation department pursuant to 32
sections 12-267 and 12-268 or by the supreme court. 33
D.||Presently appointed adult probation officers who qualify under the 34
provisions of subsection C of this section shall be retained in their 35
position as long as they are qualified. 36
Sec.|6.||Section 12-820.02, Arizona Revised Statutes, is amended to 37
read: 38
12-820.02.||Qualified immunity 39
A.||Unless a public employee acting within the scope of the public 40
employee’s employment intended to cause injury or was grossly negligent, 41
neither a public entity nor a public employee is liable for: 42
1.||The failure to make an arrest or the failure to retain an arrested 1
person in custody. 2
2.||An injury caused by an escaping or escaped prisoner or a youth 3
committed to the department of juvenile corrections. 4
3.||An injury resulting from the probation, community supervision or 5
discharge of a prisoner or a youth committed to the department of juvenile 6
corrections, from the terms and conditions of the prisoner’s or youth’s 7
probation or community supervision or from the revocation of the prisoner’s 8
or youth’s probation, community supervision or conditional release under the 9
psychiatric security review board. 10
4.||An injury caused by a prisoner to any other prisoner or an injury 11
caused by a youth committed to the department of juvenile corrections to any 12
other committed youth. 13
5.||The issuance of or failure to revoke or suspend any permit, 14
license, certificate, approval, order or similar authorization for which 15
absolute immunity is not provided pursuant to section 12-820.01. 16
6.||The failure to discover violations of any provision of law 17
requiring inspections of property other than property owned by the public 18
entity in question. 19
7.||An injury to the driver of a motor vehicle that is attributable to 20
the violation by the driver of section 28-693, or 28-1381 or 28-1382. 21
8.||The failure to prevent the sale or transfer of a handgun to a 22
person whose receipt or possession of the handgun is unlawful under any 23
federal law or any law of this state. 24
9.||Preventing the sale or transfer of a handgun to a person who may 25
lawfully receive or possess a handgun. 26
10.||The failure to detain a juvenile taken into temporary custody or 27
arrested for a criminal offense or delinquent or incorrigible act in the 28
appropriate detention facility, jail or lockup described in section 8-305. 29
B.||The qualified immunity provided in this section applies to a public 30
entity or public employee if the injury or damage was caused by a 31
contractor’s employee or a contractor of a public entity acting within the 32
scope of the contract. The qualified immunity provided in this section does 33
not apply to the contractor or the contractor’s employee. 34
Sec.|7.||Section 13-604.03, Arizona Revised Statutes, is amended to 35
read: 36
13-604.03.||Repetitive offenders; misdemeanors 37
If a defendant is convicted of a misdemeanor offense and the offense 38
requires enhanced punishment because it is a second or subsequent offense, 39
the existence of the previous conviction shall be determined by the court. 40
The court shall allow the allegation of a prior conviction to be made in the 41
same manner as the allegation prescribed by section 28-1382 28-1387, 42
subsection H| A. 43
Sec.|8.||Section 13-607, Arizona Revised Statutes, is amended to read: 1
13-607.||Judgment of guilt and sentence document; fingerprint; 2
contents of document; recitations 3
A.||At the time of sentencing a person convicted of a felony offense 4
or a violation of section 13-1802, 13-1805, or 28-1381 or 28-1382, the court 5
shall execute a judgment of guilt and sentence document or minute order as 6
prescribed by this section. 7
B.||The court or a person appointed by the court shall at the time of 8
sentencing and in open court permanently affix a fingerprint of the defendant 9
to the document or order. 10
C.||The document or order shall recite all of the following in addition 11
to any information deemed appropriate by the court: 12
1.||The full name and date of birth of the defendant. 13
2.||The name of the counsel for the defendant or, if counsel was 14
waived, the fact that the defendant knowingly, voluntarily and intelligently 15
waived the defendant’s right to counsel after having been fully apprised of 16
the defendant’s right to counsel. 17
3.||The name, statutory citation and classification of the offense. 18
4.||Whether there was a finding by the trier of fact that the offense 19
was of a dangerous or repetitive nature pursuant to section 13-604 or 20
13-604.02. 21
5.||Whether the basis of the finding of guilt was by trial to a jury 22
or to the court, or by plea of guilty or no contest. 23
6.||That there was a knowing, voluntary and intelligent waiver of the 24
right to a jury trial if the finding of guilt was based on a trial to the 25
court. 26
7.||That there was a knowing, voluntary and intelligent waiver of all 27
pertinent rights if the finding of guilt was based on a plea of guilty or no 28
contest. 29
8.||A certification by the court or the clerk of the court that at the 30
time of sentencing and in open court the defendant’s fingerprint was 31
permanently affixed to the document or order. 32
D.||The document or order shall be made a permanent part of the public 33
records of the court, and the recitations contained in the document or order 34
are prima facie evidence of the facts stated in the recitations. 35
Sec.|9.||Section 13-702, Arizona Revised Statutes, is amended to read: 36
13-702.||Sentencing 37
A.||Sentences provided in section 13-701 for a first conviction of a 38
felony, except those felonies involving a discharge, use or threatening 39
exhibition of a deadly weapon or dangerous instrument or the intentional or 40
knowing infliction of serious physical injury upon another or if a specific 41
sentence is otherwise provided, may be increased or reduced by the court 42
within the ranges set by this subsection. Such reduction or increase shall 43
be based on the aggravating and mitigating circumstances contained in 1
subsections C and D of this section and shall be within the following ranges: 2
3 Minimum Maximum
1.||For a class 2 felony
4 4 years 10 years
2.||For a class 3 felony
5 2.5 years 7 years
3.||For a class 4 felony
6 1.5 years 3 years
4.||For a class 5 felony
7 9 months 2 years
5.||For a class 6 felony
8 6 months 1.5 years
B.||The upper or lower term imposed pursuant to section 13-604, 9
13-604.01, 13-604.02, 13-702.01 or 13-710 or subsection A of this section may 10
be imposed only if the circumstances alleged to be in aggravation or 11
mitigation of the crime are found to be true by the trial judge upon any 12
evidence or information introduced or submitted to the court prior to 13
sentencing or any evidence previously heard by the judge at the trial, and 14
factual findings and reasons in support of such findings are set forth on the 15
record at the time of sentencing. 16
C.||For the purpose of determining the sentence pursuant to section 17
13-710 and subsection A of this section, the court shall consider the 18
following aggravating circumstances: 19
1.||Infliction or threatened infliction of serious physical injury, 20
except if this circumstance is an essential element of the offense of 21
conviction or has been utilized to enhance the range of punishment under 22
section 13-604. 23
2.||Use, threatened use or possession of a deadly weapon or dangerous 24
instrument during the commission of the crime, except if this circumstance 25
is an essential element of the offense of conviction or has been utilized to 26
enhance the range of punishment under section 13-604. 27
3.||If the offense involves the taking of or damage to property, the 28
value of the property so taken or damaged. 29
4.||Presence of an accomplice. 30
5.||Especially heinous, cruel or depraved manner in which the offense 31
was committed. 32
6.||The defendant committed the offense as consideration for the 33
receipt, or in the expectation of the receipt, of anything of pecuniary 34
value. 35
7.||The defendant procured the commission of the offense by payment, 36
or promise of payment, of anything of pecuniary value. 37
8.||At the time of the commission of the offense, the defendant was a 38
public servant and the offense involved conduct directly related to his 39
office or employment. 40
9.||The physical, emotional and financial harm caused to the victim or, 41
if the victim has died as a result of the conduct of the defendant, the 42
emotional and financial harm caused to the victim’s immediate family. 43
10.||During the course of the commission of the offense, the death of 1
an unborn child at any stage of its development occurred. 2
11.||The defendant was previously convicted of a felony within the ten 3
years immediately preceding the date of the offense. A conviction outside 4
the jurisdiction of this state for an offense which if committed in this 5
state would be punishable as a felony is a felony conviction for the purposes 6
of this paragraph. 7
12.||The defendant was wearing a bulletproof vest. 8
13.||If the victim of the offense is sixty-five or more years of age or 9
is a handicapped person as defined by section 38-492. 10
14.||The defendant was convicted of a violation of section 13-1104, 11
subsection A, paragraph 3 arising from an act that was committed while 12
driving a motor vehicle and the defendant’s alcohol concentration at the time 13
of committing the offense was 0.18 or more. For the purposes of this 14
paragraph, "alcohol concentration" has the same meaning prescribed in section 15
28-101. 16
14.||15.||Any other factors which the court may deem appropriate to the 17
ends of justice. 18
D.||For the purpose of determining the sentence pursuant to section 19
13-710 and subsection A of this section, the court shall consider the 20
following mitigating circumstances: 21
1.||The age of the defendant. 22
2.||The defendant’s capacity to appreciate the wrongfulness of his 23
conduct or to conform his conduct to the requirements of law was 24
significantly impaired, but not so impaired as to constitute a defense to 25
prosecution. 26
3.||The defendant was under unusual or substantial duress, although not 27
such as to constitute a defense to prosecution. 28
4.||The degree of the defendant’s participation in the crime was minor, 29
although not so minor as to constitute a defense to prosecution. 30
5.||Any other factors which the court may deem appropriate to the ends 31
of justice. 32
In determining what sentence to impose, the court shall take into account the 33
amount of aggravating circumstances and whether the amount of mitigating 34
circumstances is sufficiently substantial to call for the lesser term. If 35
the court finds aggravating circumstances and does not find any mitigating 36
circumstances, the court shall impose an aggravated sentence. 37
E.||The court in imposing sentence shall consider the evidence and 38
opinions presented by the victim or the victim’s immediate family at any 39
aggravation or mitigation proceeding or in the presentence report. 40
F.||Nothing in this section shall affect any provision of law which 41
imposes the death penalty, which expressly provides for imprisonment for life 42
or which authorizes or restricts the granting of probation and suspending the 1
execution of sentence. 2
G.||Notwithstanding any other provision of this title, if a person is 3
convicted of any class 6 felony not involving the intentional or knowing 4
infliction of serious physical injury or the discharge, use or threatening 5
exhibition of a deadly weapon or dangerous instrument and if the court, 6
having regard to the nature and circumstances of the crime and to the history 7
and character of the defendant, is of the opinion that it would be unduly 8
harsh to sentence the defendant for a felony, the court may enter judgment 9
of conviction for a class 1 misdemeanor and make disposition accordingly or 10
may place the defendant on probation in accordance with chapter 9 of this 11
title and refrain from designating the offense as a felony or misdemeanor 12
until the probation is terminated. The offense shall be treated as a felony 13
for all purposes until such time as the court may actually enter an order 14
designating the offense a misdemeanor. The provisions of this subsection 15
shall not apply to any person who stands convicted of a class 6 felony and 16
who has previously been convicted of two or more felonies. When a crime or 17
public offense is punishable in the discretion of the court by a sentence as 18
a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a 19
misdemeanor if the prosecuting attorney: 20
1.||Files an information in superior court designating the offense as 21
a misdemeanor; or 22
2.||Files a complaint in justice court or magistrate municipal court 23
designating the offense as a misdemeanor within the jurisdiction of the 24
respective court; or 25
3.||Files a complaint, with the consent of the defendant, before or 26
during the preliminary hearing amending the complaint to charge a 27
misdemeanor. 28
Sec.|10.||Section 13-809, Arizona Revised Statutes, is amended to read: 29
13-809.||Priority of payments; application to traffic offenses; 30
orders to reimburse public monies 31
A.||If a defendant is sentenced to pay a fine, payment and enforcement 32
of restitution take priority over payment to the state. 33
B.||Section 13-804 does not apply to traffic offenses, except for a 34
violation of section 28-661, 28-693, 28-1381, 28-1382 or 28-1383 or any local 35
ordinance relating to the same subject matter of such sections. 36
C.||The court may impose an additional fine on sentencing for any 37
offense to require that the defendant reimburse the law enforcement agency 38
for any public monies paid to any person. 39
Sec.|11.||Section 13-902, Arizona Revised Statutes, is amended to read: 40
13-902.||Periods of probation 41
A.||Unless terminated sooner, probation may continue for the following 42
periods: 43
1.||For a class 2 felony, seven years. 1
2.||For a class 3 felony, five years. 2
3.||For a class 4 felony, four years. 3
4.||For a class 5 or 6 felony, three years. 4
5.||For a class 1 misdemeanor, three years. 5
6.||For a class 2 misdemeanor, two years. 6
7.||For a class 3 misdemeanor, one year. 7
B.||Notwithstanding subsection A of this section, unless terminated 8
sooner, probation may continue for the following periods: 9
1.||For a violation of section 28-1381 or 28-1382, five years. 10
2.||For a violation of section 28-1383, ten years. 11
C.||When the court has required, as a condition of probation, that the 12
defendant make restitution for any economic loss related to the defendant’s 13
offense and that condition has not been satisfied, the court at any time 14
prior to the termination or expiration of probation may extend the period 15
within the following limits: 16
1.||For a felony, not more than three years. 17
2.||For a misdemeanor, not more than one year. 18
D.||Notwithstanding any other provision of law, justice courts and 19
municipal courts may impose the probation periods specified in subsection A, 20
paragraphs 5, 6 and 7 and subsection B, paragraph 1 of this section. 21
E.||After conviction of a felony offense or an attempt to commit any 22
offense that is included in chapter 14 or 35.1 of this title or section 23
13-3623, if probation is available, probation may continue for a term not 24
less than the term that is specified in subsection A of this section up to 25
and including life and that the court believes is appropriate for the ends 26
of justice. 27
Sec.|12.||Section 22-125, Arizona Revised Statutes, as amended by Laws 28
1997, chapter 1, section 44, is amended to read: 29
22-125.||Justice of the peace compensation; judicial 30
productivity credits 31
A.||The annual salary of each justice of the peace is determinable on 32
the basis of the total judicial productivity credits of each court as 33
reported in statistics compiled by the Arizona supreme court according to the 34
following formula: 35
1.||Total civil filings, excluding those small claims filings heard by 36
a volunteer hearing officer, divided by ten equals __________ judicial 37
productivity credits. Juvenile hearings pursuant to section 8-232 8-323, 38
excluding juvenile traffic violations, shall be counted as civil filings. 39
2.||Total felony complaint filings divided by ten equals __________ 40
judicial productivity credits. 41
3.||Total misdemeanor filings divided by ten equals __________ judicial 42
productivity credits. 43
4.||Total traffic filings of a violation of sections 28-662 through 1
28-664, 28-693, 28-702.01, 28-702.04, 28-708, and 28-1381 and 28-1382 divided 2
by ten equals __________ judicial productivity credits. 3
5.||Total of all other traffic filings divided by sixty equals 4
___________ judicial productivity credits. 5
B.||Total judicial productivity credits for a justice of the peace is 6
the sum of the figures computed in subsection A of this section. 7
C.||The board of supervisors shall use the average number of cases 8
filed annually in each justice court for the two year period ending December 9
31, 1979 to determine the initial judicial productivity credits for each of 10
the case load categories described in subsection A of this section. The 11
board of supervisors shall compute judicial productivity credits every two 12
years thereafter using the average annual filings for the preceding two year 13
period. 14
D.||In determining the compensation levels appropriate to the case load 15
of each justice of the peace, the board of supervisors shall use the total 16
judicial productivity credits as follows: 17
1.||Five hundred or more judicial productivity credits, seventy per 18
cent of the annual compensation payable to a judge of the superior court. 19
2.||Two hundred to four hundred ninety-nine total judicial productivity 20
credits, sixty-five per cent of the annual compensation payable to a judge 21
of the superior court. 22
3.||One hundred fifty to one hundred ninety-nine total judicial 23
productivity credits, fifty-five per cent of the annual compensation payable 24
to a judge of the superior court. 25
4.||One hundred to one hundred forty-nine total judicial productivity 26
credits, fifty per cent of the annual compensation payable to a judge of the 27
superior court. 28
5.||Fifty to ninety-nine total judicial productivity credits, 29
forty-five per cent of the annual compensation payable to a judge of the 30
superior court. 31
6.||Twenty-five to forty-nine total judicial productivity credits, 32
thirty-five per cent of the annual compensation payable to a judge of the 33
superior court. 34
7.||Twenty-four or fewer total judicial productivity credits, a 35
part-time case load for one justice of the peace, twenty-five per cent of the 36
annual compensation payable to a judge of the superior court. 37
E.||If a justice court is not assigned clerical help, the board of 38
supervisors shall multiply the total judicial productivity credits by two for 39
purposes of determining compensation. 40
F.||If the board of supervisors divides a justice precinct into two or 41
more precincts, the board shall set the level of compensation consistent with 42
the intent of this section until such time as statistics are available for 43
computation of compensation levels using the formula prescribed by this 1
section. 2
G.||The board of supervisors shall review and adjust the level of 3
compensation for each justice of the peace within the county every two years 4
beginning January 1, 1983. 5
H.||The judicial productivity credits for any justice court precinct 6
shall not exceed twelve hundred credits. If the total judicial productivity 7
credits of a justice court precinct exceed twelve hundred credits, the county 8
board of supervisors shall create sufficient courts, or redraw the justice 9
court precinct boundaries according to section 22-101, in order to reduce the 10
judicial productivity credits for any precinct which exceeds that limit. 11
Sec.|13.||Repeal 12
Section 22-125, Arizona Revised Statutes, as amended by Laws 1997, 13
chapter 222, section 64, is repealed. 14
